Jeanette May Kilduff v Tristan Eisman [1993] ACTSC 8 (16 February 1993)

SUPREME COURT OF THE ACT

JEANETTE MAY KILDUFF v. TRISTAN EISMAN
No. SC 110 of 1991
Number of pages - 20
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan(1)

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Musculo ligamentous injury - Neck and spine - Functional overlay - No issue of principle.

HEARING

CANBERRA, 25 November 1992
16:2:1993

Counsel for the Plaintiff: C. McKeown

Instructing Solicitors: Wood Fussell

Counsel for the Defendant: P. R. Garling

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

1. Judgment be entered for the plaintiff for $66,535.

DECISION

MASTER A. HOGAN This is the assessment of damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 14 March 1989.

2. The plaintiff was born in November 1941. She did not give a great deal of evidence about her life and health before the accident, the additional details of which are to be gleaned from the sometimes vague histories that she gave to the doctors whose reports are in evidence, especially those of Dr Lee and Dr Robbie, psychiatrists.

3. She had left home and married at the age of 19. She had six children. There were difficulties in the marriage. There was a separation in 1979, as a result of which she required psychiatric care, and was prescribed antidepressants for a time. Dr Lee recorded that she continued outpatient therapy on and off, while her husband continued to make periodic contact. They finally separated in 1985, though they continued to see each other from time to time.

4. She told Dr Lee that after the separation in 1985 she felt able to stand on her own feet, and cope by herself without medication. In cross examination she admitted that in 1985 she was being treated and had been treated for a number of years by Dr Tennant, psychiatrist, that she had been admitted to hospital on a number of occasions, and that she received, first a sickness benefit, and then an invalid pension. She claimed to have been completely cured, and to have stopped seeing Dr Tennant in August 1985, but she continued to receive the invalid pension, and was still receiving it at the time of the accident and at the hearing.

5. There were no reports tendered from Dr Tennant, though it was suggested to the plaintiff, and she conceded, that she continued to receive the invalid pension only because Dr Tennant continued to supply the certificates of her invalidity to the relevant Department.

6. Physically, however, she claimed that she was in good health before the accident. She was on medication for hypertension, which had been under control for decades.

7. On 14 March 1989 she was a passenger in the front seat of a car being driven by her husband. The defendant's vehicle failed to give way at a give way sign, and the car in which she was a passenger collided with it. When she saw the impending collision she took hold of the support handle on the left side of the inside of the car with her right hand and turned her head. She did not lose consciousness, but can not remember much of what happened immediately afterwards.

8. It seems that she first consulted Dr Fedoroff, soon after the accident. She recorded a history of her having been thrown from side to side and then forward and back in the collision. She had a painful right shoulder and right neck and hip. She was in shock. Dr Fedoroff ordered x-rays, which disclosed no relevant bony abnormality.

9. Later that day, in mid afternoon, she consulted Dr Reeve, her general practitioner. He found she had restricted movements of the neck, and tenderness in the trapezius ridge on the right side, which she attributed to twisting to support herself. He prescribed a painkiller and a muscle relaxant.

10. On 23 March Dr Reeve saw her again. She was complaining of pain encircling the upper right arm. The Valium was making her drowsy and prone to indigestion. He took her off the Valium and sent her to a physiotherapist.

11. On 7 April she saw him again. The physiotherapy had helped, but there was still pain in the upper neck. He prescribed Voltaren. On 14 April she reported that the Voltaren nauseated her, and that she was not improving. He referred her to Dr Newcombe.

12. Dr Newcombe saw her on 2 May 1989. She told him that the pain had improved, but she still had pain in the neck, which was aggravated by activities such as gardening or art and craft work. He found some restriction of lateral flexion of the neck, which was reduced to about 40 degrees to each side. He diagnosed a musculo ligamentous strain. Her condition was essentially unchanged when he saw her again on 13 May 1989.

13. On 22 June 1989 she went back to see Dr Fedoroff. She still had an ache at the back of her neck, a painful right shoulder and numbness in the right arm. Dr Fedoroff found restrictions on flexion and extension of the neck. She was complaining that almost any physical activity made the chronic neck pain worse.

14. To this stage there is no reference in the reports to lumbar pain. She later told Dr Chandran that she had suffered pain in the back making bending difficult since the accident. She claimed that chiropractic treatment had aggravated the pain.

15. Between April and October 1989 she attended Dr Reeve's surgery on seven occasions for various problems, and during three of these she mentioned her neck discomfort, the last time being on 13 September 1989. He did not record lower back pain.

16. Dr Newcombe saw her in August 1989, and discontinued the physiotherapy.

17. On 26 October 1989 she saw Dr Fedoroff. She complained of a painful neck after gardening, and not being able to sleep. She prescribed anti-inflammatory and muscle relaxant medicines.

18. On 16 November 1989 she still had a very painful neck, related to gardening. Dr Fedoroff prescribed muscle relaxation massage. On 21 November 1989 Dr Fedoroff visited the plaintiff at her home. She had severe low back ache. She arranged for her admission to hospital by ambulance. The back was still painfull on 27 November. She referred the plaintiff to Dr Newcombe, who ordered a CT scan.

19. The NRMA sought an opinion from Dr Andrews, consultant neurologist, who saw her on 29 November 1989. She complained to him of pain at the base of the neck, aggravated by flexion of the neck and rotation to the right. There were frequent occipital headaches and a vague numbness in the right arm. She also complained of low back pain extending into the buttocks and down the back of the legs into both feet.

20. Dr Andrews found severe restriction of neck movement, and she shuffled around with gross retardation of movement. Straight leg raising was good at 80 degrees. He thought she exhibited a severe degree of functional overlay, and found it difficult to know whether her symptoms were genuine or not. He ordered a CT scan which was performed on 1 December 1989. There was no disc prolapse demonstrated at L3/4. At the L4/5 level there was generalised bulging of the annulus, but no disc prolapse shown, and no abnormality was demonstrated at L5/S1. Those findings confirmed Dr Andrews in his view that there was no convincing evidence of physical causes for her complaints.

21. When Dr Newcombe reviewed her on 14 December 1989 there was continued low back pain and lower limb pain with limitation of straight leg raising on the left side to 70 degrees. He suspected a possible disc protrusion and arranged a radiculogram, which was performed on 10 January 1990. Although there was a slight bulge of the annulus at L4/5, it was within normal limits. There was no other sign of abnormality. He continued conservative management. He concluded his report to NRMA Insurance dated 16 January 1990 as follows:

"In summary - she continues to suffer some low back pain with
some lower limb radiation following the injury of 14.3.89. The
pains are probably of musculo-ligamentous origin. The neck
problems following the injury of 14.3.89 appear to have settled.
She has indicated to me that following the accident low back pain
with radiation to the right hip, hip and lower limb, in
particular, was present from the time of the accident though the
neck problems were initially more prominent."

22. Dr Andrea, surgeon, examined her on 8 January 1990. Her complaints were of the neck and low back. She said she had had low back pain since the accident. He found some limitation of rotation of the neck, but could not detect any muscular spasm. She could bend forward without much trouble, and straight leg raising was not remarkable. He agreed with Dr Andrews that she had a considerable degree of functional overlay. The soft tissue damage to the neck was mild, and should recover. If there was any lumbar disc damage, it was very mild.

23. In March 1990 Dr Newcombe thought that there was still no clear indication for surgery, despite her continuing complaint of low back pain and right sciatica. He was sure her symptoms would gradually resolve spontaneously.

24. X-rays taken on 14 March 1990 were seen by Dr Fedoroff. There were minor degenerative changes in the mid dorsal area, but no abnormality in the lumbosacral area. Plain x-rays notoriously do not exclude disc damage.

25. Dr Fedoroff saw her on a number of occasions over May and June 1990, but despite physiotherapy and medication, her condition did not improve. He thought the prognosis was poor. He referred her to Dr Chandran, neurosurgeon, for a second opinion.

26. Dr Chandran saw her first on 29 May 1990. He found no neurological deficits. Straight leg raising was 90 degrees on each side. Neck movements were full. Yet the plaintiff was very tearful and depressed. She was prescribed further physiotherapy and anti-depressants.

27. She did not accept the physiotherapy treatments offered because they had not helped her before. Dr Chandran persuaded her to undergo a MRI scan, which was performed on 2 July 1990 by Dr Ho. That test showed a slight protrusion of the C5/6 disc and the T12/L1 disc. There was evidence of dehydration and early degeneration at L4/5 and at L5/S1, and a mild central-protrusion of the disc at L5/S1.

28. Nerve conduction studies by Dr Andrews on 12 July 1990 suggested a possibility of a lower thoracic or upper lumbar segment cord lesion. Dr Andrews reported to NRMA Insurance that he thought the disc protrusion at T12/L1 shown on the MRI scan was significant, and was producing the symptoms in the legs and the abnormalities elicited on the electrical studies.

29. Dr Chandran advised that she should lose weight vigorously, and that the lower thoracic disc should be operated on. Dr Andrews also thought the signs all pointed to the major lesion being at T12/L1. He commented:

"This condition as this stage cannot be regarded as stable as
we will have to know the outcome of that surgery. Surgery at
this level is fairly difficult so it is hard at this stage to
try and prognosticate on the likely success.
Unfortunately this lady in the past has been difficult to assess
as I think there was probably some exaggeration of symptomatology
at times."

30. Dr Chandran advised her that the operation would not alter the symptoms in the neck or lower back. Not surprisingly, in the light of the prospects offered by the two specialists, she decided not to have the surgery.

31. Dr Chandran's opinion, in his report of 5 December 1990, was as follows:

"The history given by this person indicates that she was
involved in a motor vehicle accident leading to symptoms in the
neck, lower thoracic spine and back. It seems a rather extensive
injury to her spine but the main problem at this stage seems to
be in the lower thoracic region. There is irritation of the
lower part of the spinal cord which may explain the urinary
symptoms. However, there is no neurological deficits to support
that the compression is the actual cause of urinary symptoms.
She also has an underlying state of depression and an anxiety
state which may aggravate the symptoms or produce symptoms that
have no organic basis. However, there is evidence to say that
there is a mild problem in the cervical and lumbar spine which
could cause a restriction of physical activities at home.
In the presence of extensive symptoms and the type of injury, the
overall outlook of complete resolution of symptoms seems poor.
She may end up requiring surgical treatment for the neck pain as
well following discography."

32. She continued to see Dr Chandran. In February 1991 she had shed 11 kilograms, and special pillows were helping her neck pain.

33. In April 1991 she went to Royal Canberra Hospital Casualty Department and was given a pethidine injection for the pain. After seeing her on 30 April 1991, Dr Chandran admitted her to the hospital for a few days. There was no change in the neurological status, but bizarre complaints of sensory loss all up the spine.

34. He thought that although there was an organic basis for the pain, her symptoms were more due to her mental state, and advised her to see a psychiatrist.

35. Dr Fedoroff therefore referred her to Dr Lee, psychiatrist, who saw her first on 18 June 1991. She presented to him as tearful, despairing and confused. She verbalised anger and disappointment toward her doctors for not being able to help her. She complained of unrelenting pain in various parts of her body, with inability to cope with everything at home.

36. He prescribed an anti-depressant, and followed up with supportive psychotherapy over July, August, September and October of 1991. In November 1991 she reported some alleviation of her emotional distress. In his opinion, Mrs Kilduff had emotionally decompensated following the accident of 14 March 1989. There were physical injuries and pain, clouded and exacerbated by emotional issues. He thought she had a combination of both physical and emotional difficulties presenting as a chronic pain syndrome with depression. He proposed to continue treatment, but his prognosis was guarded. He noted in a later letter that it was not clear that but for the pain caused by the subject accident, she would not have suffered the depression, as she was a vulnerable person with depressive changes in the past.

37. Meanwhile, in July 1991, Dr Andrews reviewed her and the tests done. There were to him a lot of inconsistencies in the physical findings. He thought there was still a gross degree of functional overlay.

38. Dr Andrea also saw her at about the same time. He commented:

"Mrs Kilduff is suffering from multiple pains in multiple
places. She has been seen by a lot of doctors and been told many
things. I understand she is being seen by a psychiatrist and
this would seem to be a very good idea. I find it hard to
believe that much of her problems are associated with the
accident in March 1989."

39. I think that Dr Andrea is saying, in plain English, very much the same as Dr Andrews.

40. The defendant's solicitors sought an opinion from Dr Robbie, psychiatrist, who interviewed her for about an hour and a half on 17 September 1991. He thought that there was great significance in the fact that her mother had died of cancer only 3 months before the accident, after an illness lasting about a year. He also noted the progression, and intervening psychiatric flavour, in the medical reports.

41. He commented:

"She made it clear that pain and her emotional state
inter-react. Allowing for a likely exacerbation due to the
medical interviews at present, she does appear to have a
dysthymia, a mild chronic depression, and there are anxious
features as well, all on the basis of a likely personality
disturbance, though I do not wish to delineate the latter on only
the one interview."

42. On balance, Dr Robbie was inclined to the view that her depression could be connected with her back, and that if the orthopaedic specialists connected her back with the accident, he would attribute the dysthymia to it as well.

43. On the same day she was examined by Dr Spira, consultant neurologist, on behalf of the defendant. Her behaviour and complaints during his examination were such that he found it difficult to determine the severity of the impact, or the reality of its consequences as claimed by her. He thought there were a large number of functional features, some of which required deliberate attempts at deception on her part.

44. I bear in mind that over August and September 1991, in addition to being examined by the defendant's specialists, she was still undergoing treatment by Dr Lee, who noted that the experience of seeing specialists about her claim exacerbated her symptoms and emotional turmoil.

45. Dr Andrea re-examined her in preparation for the hearing in August 1992. He noted the length of time for which she complained only of neck pain, and thought that the changes shown by the radiography were probably largely degenerative in nature.

46. Dr Spira also re-examined her later that same month. She was still seeing a psychiatrist about once a month. Again he found no convincing organic abnormalities, and adhered to his conclusion that she suffered no significant physical trauma in the accident, and that her many complaints were psychogenic.

47. Dr Robbie saw her again on 28 August 1992. He did not think there had been much change over the year since he saw her first. She presented as having a mild chronic depression, although she was on medication prescribed by Dr Lee.

48. Dr Andrews finally reviewed her on 9 September 1992. She described headaches, pain at the base of the neck, extending down into the right arm, low back pain extending into both the upper and lower lumbar regions, an ache around the right lower rib cage and numbness extending down the legs.

49. In his opinion, the disc lesion at T12/L1 shown in the MRI scan could well be the cause of upper lumbar pain extending into the rib cage, but there was nothing much else found objectively to account for her signs and symptoms. They were largely attributable to a psychiatric illness and were grossly exaggerated.

50. Dr Lee gave evidence and was cross examined. He agreed that it was difficult to say how much of her complaints were attributable to physical injury and how much to her psychiatric condition. She had a long history of psychiatric problems before the accident. She had been coping well enough for some years before the accident. She might have become psychiatrically ill again as a result of some other trauma even had there been no motor car accident, but she might also have continued to remain well. The accident that did happen was severe enough to destabilise her ability to cope. He continues to treat her, seeing her about once every month or six weeks. He expected treatment to continue for 6 months to a year.

51. Dr Fedoroff also gave evidence and was cross examined. She confirmed that the plaintiff made no complaint relating to her lower back when she first consulted her. Her clinical notes disclosed that she did make a complaint of back pain on 22 June 1989, aggravated after digging in the garden. On the next occasion, on 26 October 1989, there was no note that she had complained about her lower back.

52. While the plaintiff was giving evidence, I did not perceive anything to make me suspect that she was deliberately exaggerating, or that she was doing anything other than trying to do her best to give information in an unfamiliar situation. She was, however, a poor historian. She had, I think, genuinely forgotten about the problems that she had suffered with her right knee for many years, until eventually it had required manipulation under general anaesthetic in 1986. Since she is not now claiming that it causes any problems, that is understandable. There is no evidence that the state of her knee played any part in her receiving the invalid pension.

53. She could not clearly remember when she first complained of lower back pain to any of the doctors, but thought it was less than 3 months after the accident. She did agree that when she complained about a lower back ache to Dr Fedoroff on 22 June 1988 she also told her that she had not previously had back pain except for that associated with gynaecological problems years before.

54. None of the other doctors were cross examined.

55. One question that has concerned me, and which I think it important to resolve, is that of the causation of the low back pain.

56. Dr Andrews eventually found radiological evidence of pathology at T12/L1, which could well cause pain in the upper lumbar area. He did not comment on the causation.

57. Dr Andrea, in January 1990, thought it likely that she did not suffer major physical damage, but did not suggest that any part of whatever physical damage she had suffered was not caused by the accident. In August 1992 he noted the lapse of time between the accident and complaints of lower back pain, but commented only:

"Various x-rays have shown changes which are probably largely
degenerative in nature, and there is no proof that they have
anything to do with her current symptoms, nor is it certain that
any of them were produced by her accident."

58. He does not comment on the probabilities, or attempt to exclude the back pain from being a result of the accident.

59. Dr Spira found little physical sign of injury, and attributed her troubles to functional overlay. He did not comment expressly on causation.

60. Dr Fedoroff, who saw her over a long period which began on the day of the accident, reported on 23 January 1990 that the injuries she treated were:

"A. Painful neck; whiplash type injury as from MVA.
B. Painful lower back due to jolting MVA 14.3.89; low
back ache developed later after the accident, injury at
first appeared to be right hip."

61. She was not asked to retract that statement in cross examination.

62. Dr Chandran, who was seeing her for treatment, attributed all her spinal problems to the accident in his report of 5 December 1990, quoted earlier in these reasons. He was not cross examined.

63. Dr Newcombe, who also saw her for treatment, reported in January 1990 that in summary she continued to suffer some low back pain with some lower link radiation following the injury of 14 March 1989. He also was not cross examined.

64. There is no evidence of any other incident that could have made her lower back painful.

65. On balance, therefore, I conclude that the physical injury that she did suffer in the accident, whatever its extent, did include damage to the thoracic and lumbar spine, at least to the ligamentous or soft tissues. If the pathology shown radiologically was principally degenerative, it was made symptomatic by the accident.

66. The plaintiff was already psychologically fragile. The trauma of the accident, and the pain that she suffered had much greater effects upon her than would have been the case if she had not been so fragile. Despite the absence of organic explanation for her symptoms, she does perceive herself to be restricted in her movements, and subject to the pains and disabilities that she claims, at least to some extent.

67. On the other hand, although she is not consciously or deliberately attempting to deceive, I do not think that in her day to day living those pains and disabilities are as severe as her descriptions of them to the various doctors would indicate. I think that there is a considerable degree of unconscious or understandable exaggeration in her descriptions and demonstrations.

68. I also think that this is one of those (probably rare) cases where the conclusion of this litigation will remove a focus for her problems.

69. However, none of the doctors say that at any particular time in the future she will be free of pain and disability, either organic or psychogenic. She has in fact been permanently injured. She might have been so injured by some other injury had this accident not happened, but in fact it was this accident that caused the damage from which she now suffers.

70. She claimed that when her youngest child had left home she contemplated returning to work. She had taken no steps towards doing so. She had no particular skills or career. There is no evidence that her invalid pension was under threat. I am simply not persuaded that had the accident not happened she would in fact have returned to work. However she now perceives that the possibility of doing so is no longer available to her. It is possible, though not likely, that she might have sought and obtained some occasional, casual part time work. I propose to take that matter into account in assessing general damages. But I do not propose to include in the award any separate sum for loss of future income capacity.

71. In December 1990 Dr Chandran thought she might end up requiring surgical treatment. However, in August 1991 he thought she was not a candidate for any surgical treatment unless significant neurological deterioration occurred. Dr Andrews reported that surgery at the T12/L1 level is fairly difficult, and it would be hard to prognosticate on its likely success. In September 1992 he thought that surgery would be unlikely to be successful.

72. I think it is most unlikely that she will ever come to surgery for reasons connected with the subject accident.

73. For pain and suffering and loss of amenity I award $50,000 of which $10,000 would relate to the future. For interest on the past component I award $3,100 on the conventional basis.

74. The out of pocket expenses that should be included in the judgment are agreed at $8,434.75.

75. She will continue to see Dr Lee for treatment for up to a year. She will in any event need continuing medication. If there is any physiotherapy in the future it will be only occasional. There was no detailed evidence, nor did counsel make any submission, about quantifying this part of the award, but that does not disentitle her to it. Doing the best I can, I award $5,000 for the cost of future treatment.

76. The total award is therefore made up as follows:

Pain and suffering $50,000
Interest 3,100
Out of pocket expenses 8,435
Future treatment 5,000
$66,535

77. I direct the entry of judgment for the plaintiff in the sum of $66,535.